Can a prosecutor tell a crime victim that they could sue the offender in small claims court to recover their property loss?

Currency note

This opinion was issued in 1976, before the State Bar of California's adoption of the November 1, 2018 revisions to the Rules of Professional Conduct. The opinion interprets former California Rule 2-105(B) (advising the commencement of a case) and ABA Code Canon 2 and EC 2-3, in a context now touched by Model Rules 3.8 (special responsibilities of a prosecutor) and 4.3 (dealing with an unrepresented person). Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule or requirement mentioned here.

Disclaimer: This is an advisory ethics opinion. Advisory opinions are not binding; they interpret the State Bar of California's rules of professional conduct and are persuasive authority. This summary is for research purposes only and is not legal advice. Verify current rules before acting on any specific guidance.

About this page: The plain-English summary and Q&A below were written by Ezel based on the official opinion. The opinion text is reproduced at the bottom; the official source (linked) controls.

View original opinion

Plain-English summary

The committee was asked whether a prosecutor may tell a crime victim who suffered a property loss that a small claims action could be brought against the offender (or his parents, if a juvenile) to recover the loss, where the convicted offender had not been ordered to make restitution as a condition of probation. The committee concluded the prosecutor may provide that information in response to the victim's inquiry and may also volunteer it, absent improper motives.

The committee drew on ABA Code Canon 2 and EC 2-3, which recognize that advising someone to take legal action can fulfill the profession's duty to help laypersons recognize legal problems. It reasoned that a prosecutor has an obligation to answer reasonable questions from the public, that a crime victim has an interest in knowing available remedies, and that failing to mention a possible civil remedy could mislead the victim. It then applied former Rule 2-105(B), which barred a lawyer from advising the commencement of a case unless consulted, "except when his relation to a party or to the subject matter is such as to make it proper for him to do so." The committee found the prosecutor's relation to the victim met that exception, because the prosecutor is a public servant who gains nothing personally from informing a member of the public of his civil remedies.

The committee added the limit drawn from EC 2-3: volunteering the information is improper when the prosecutor is motivated by a desire for publicity or to harass or injure the offender, and proper only when motivated by a desire to protect someone who does not recognize a legal problem or is ignorant of his rights.

Common questions

Q: Can a prosecutor tell a crime victim how to sue the offender for their loss?

A: Yes, under this opinion. The committee concluded a prosecutor may inform a crime victim of civil remedies in response to an inquiry, and may volunteer the information, absent an improper motive.

Q: Does it matter that the prosecutor was not consulted about the civil case?

A: The committee addressed that through former Rule 2-105(B). Although the prosecutor had not been consulted, his relation to the victim as a public servant who gains nothing personally made it proper for him to provide the information.

Q: When would volunteering the information be improper?

A: The committee said it is improper when the prosecutor is motivated by a desire for personal publicity or to harass or injure the offender, citing EC 2-3.

Background and rules framework

The opinion interprets former California Rule 2-105(B), which restricted a lawyer from advising the commencement, prosecution, or defense of a case unless consulted or unless the lawyer's relation to a party or the subject matter made it proper. It read that rule alongside ABA Code Canon 2 and EC 2-3 on the duty to make legal counsel available and the limits on volunteering advice. The prosecutor's role and contact with an unrepresented victim are now addressed by Model Rules 3.8 and 4.3 and their California analogs.

Citations and references

Rules of Professional Conduct:

• Former California Rule 2-105(B)
• ABA Code of Professional Responsibility, Canon 2 and EC 2-3
• Current analogs: Model Rules 3.8 and 4.3 / California Rules 3.8 and 4.3

See also

• CA Ethics Op. 1976-39: Informing Discharged Jurors of Inadmissible Facts

Source

• Landing page: https://www.calbar.ca.gov/legal-professionals/ethics-compliance-practice-resources/ethics/ethics-opinions
• Original opinion: https://www.calbar.org/ethics/Opinions/1976-40.htm

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

THE STATE BAR OF CALIFORNIA
STANDING COMMITTEE ON PROFESSIONAL RESPONSIBILITY AND CONDUCT
FORMAL OPINION NO. 1976-40

ISSUE:

May a prosecutor ethically inform a crime victim of possible civil remedies?

DIGEST:

A prosecutor may properly inform a crime victim of civil remedies available against a criminal.

AUTHORITIES INTERPRETED:

Rule 2-105(B) of the Rules of Professional Conduct of the State Bar.

DISCUSSION

The Committee has been asked whether a prosecutor may properly inform a crime victim who has suffered a property loss that a small claims court action could be brought against the criminal (or his parents, if he is a juvenile) in an effort to recover the loss. The inquirer indicates that the convicted criminal has not been ordered to make restitution of the loss as a condition of the probation.

It is the Committee's opinion that information regarding civil remedies properly may be provided to the crime victim by the prosecutor in response to the victim's inquiry. Further, the prosecutor may volunteer the information, absent improper motives.

Canon 2 of the American Bar Association Code of Professional Responsibility provides some guidance. Canon 2 states: "A lawyer should assist the legal profession in fulfilling its duty to make legal counsel available." Ethical Consideration 2-3 of the American Bar Association Code of Professional Responsibility expands upon canon 2 as follows:

"... The giving of advice that one should take legal action could well be a fulfillment of the duty of the legal profession to assist laymen in recognizing legal problems . . ."

The prosecutor has an obligation to answer reasonable questions of members of the public. Unquestionably, a crime victim has an interest in learning what legal remedies are available. The loss of property is a legal problem warranting resolution. Failure to mention the availability of a possible civil remedy could mislead the victim. Nonetheless, volunteering the information raises questions of relation and motive. Rule 2-105(B) of the Rules of Professional Conduct states:

"A member of the State Bar shall not advise the commencement, prosecution or defense of a case unless he has been consulted in reference thereto, except when his relation to a party or to the subject matter is such as to make it proper for him to do so."

As the prosecutor has not been consulted about the civil action, the volunteering of the information would only be proper if his relation to the crime victim was "such as to make it proper for him to do so." We believe such a relation exists under these circumstances. The prosecutor is a public servant who stands to gain nothing personally by informing a member of the public of his civil remedies.

It is improper for the prosecutor to volunteer the information, however, when he is motivated by a desire for publicity or a desire to harass or injure the criminal. Thus, American Bar Association Code of Professional Responsibility, Ethical Consideration 2-3 further provides:

"Whether a lawyer acts properly in volunteering advice to a layman to seek legal services depends upon the circumstances... The advice is proper only if motivated by a desire to protect one who does not recognize that he may have legal problems or who is ignorant of his legal rights or obligations. Hence, the advice is improper if motivated by a desire to secure personal publicity, or cause litigation to be brought merely to harass or injure another..."

This opinion is issued by the Standing Committee on Professional Responsibility and Conduct of The State Bar of California. It is advisory only. It is not binding upon the courts, The State Bar of California, its Board of Governors, any persons or tribunals charged with regulatory responsibilities, or any member of the State Bar.